Are You Listening to This? The Constitutionality of Interceptions of Private Communications In Exceptional Circumstances

Justice Moldaver and Justice Karakatsanis, writing for an unanimous court in the Tse case and their first decision as Justices of the Supreme Court of Canada, found s.184.4 of the Criminal Code, which governs investigatory interceptions of private communications in “exceptional” circumstances, lacking in the constitutionally required safeguards required for such interceptions. According to the Code, “exceptional” circumstances refers to the situation where a peace officer is facing an “urgent” situation whereby he or she is reasonably unable to follow the normal procedures outlined in the Code for such interceptions.

What would these normal procedures require? First, we must step back from the section and pause to consider the context. Section 184.4 is in Part VI (6) of the Criminal Code relating to “invasion of privacy,” or when a peace officer wants to investigate a criminal matter by using an investigative technique involving the surreptitious interception of private communications. In other, more colloquial terms, the police want to “spy” or “eavesdrop” on a targeted individual, whom the police believe on reasonable grounds to be committing or planning to commit a crime. As we know from television and movies, spying is a very high tech activity requiring the most cutting edge devices such as wiretaps accessed by loads of smart looking mechanical equipment found in plain white cube vans with cool looking techies wearing enormous noise-cancelling headphones. Also present is the ubiquitous computer laptop, as today’s savvy cop needs to use the best in order to combat the even technologically savvier criminal.

As great as these techniques look on the big screen, they do not translate well in the constitutional setting; a context, which takes individual rights seriously, and violations of such rights even more seriously. In our Charter, through sections 7 and 8, the state is required to respect the dignity, autonomy, and integrity of the individual as a defining element of individual freedom. However, with this state obligation, as Pierre Trudeau so eloquently stated “there's no place for the state in the bedrooms of the nation,” comes the competing need to protect society from harm through state-sponsored police investigation and protection. It is the judiciary’s role to determine the appropriate balance between these competing rights through a generous and flexible interpretation of the Charter.

As a result, the starting point in the Criminal Code for invasion of privacy is to create an offence where private communication is intercepted by any means. Private communications are any oral, telephone, or radio-based communication made in the context of a reasonable expectation of privacy. Thus, the originator of the communication intended the communication to be made to another person, with an expectation no one else other than the intended receiver would hear it. Any non-consensual interceptions to such private communication are therefore unlawful and contrary to section 184 of the Criminal Code.

There are two exceptions to the rule, wherein the interception is unlawful. One scenario involves the consent to intercept by either the originator or the receiver of the communication. The other scenario, which is of interest in the Tse case, contemplates a lawful interception where the investigators obtained prior judicial authorization to intercept the communications in accordance with the procedure as set out in the Criminal Code. The application to a Judge for such an authorization is described in section 185 of the Criminal Code.

The application procedure is rigorous: it must be made in writing, it must be made before a superior court judge or a designated judge, it must be signed by the provincial Attorney General or the Minister of Public Safety and Emergency Preparedness or a duly authorized agent specially designated in writing, and must be accompanied by a sworn document (affidavit) of the investigating officer. 

In turn, this affidavit, based on the information and belief of the investigator, must include the following information: the facts justifying the authorization should be given; the particulars of the alleged crime; the type of communication to be intercepted; the names, addresses, and occupations, if known, of all the persons intended to be intercepted together with the reasonable grounds to believe such interception may assist the investigation; a description of the place, if known, where the communication is to be intercepted; general description of how the communication will be intercepted; the number of times, if any, such an application for interception has previously been made under the section and the specific details of that prior application; the length of time for which the interception is required; and why other investigative techniques would not likely succeed or why it would be impractical to use other techniques due to the urgency of the situation or if other techniques were tried and failed, what those other investigative techniques were and why they failed to work.

Even if the above procedure is followed to the letter and even if the peace officer has fulfilled all of these pre-requisites, the application Judge, under section 186, must not issue an authorization unless her or she is satisfied that it is in the best interests of the administration of justice to issue the authorization to intercept and that other investigative techniques have been tried and failed, or are unlikely to succeed, or urgency requires this technique.

The steps needed and the information required before an authorization is issued emphasizes the status quo of non-interception and provides a constitutionally permissible exception to the general rule.

Now that we have stepped back from the section at issue in the Tse decision to look at the broader context, we can appreciate the constitutional deficiencies found in s.184.4. First, as earlier discussed, s. 184.4 is an exception to the exception found in s. 185. Section 184.4 permits a peace officer to intercept a private communication in prescribed exigent circumstances where: the peace officer believes on reasonable grounds that an authorization cannot reasonably be obtained and the peace officer believes on reasonable grounds the interception is “immediately necessary” to prevent an “unlawful act” that would cause “serious harm” to person or property and where either the originator of the communication or the receiver of the communication will cause the harm or is the intended victim of the harm. That’s it. There is no requirement for prior judicial authorization. It is the investigator, not an unbiased judicial officer, who makes the determination of the urgency of the situation.

All the safeguards found in sections 185 and 186 seem to disappear as “urgency” trumps “privacy” in s. 184.4.  Not so according to Justices Moldaver and Karakatsanis. In their view, certain aspects of the section pass “constitutional muster” as it provides an appropriately flexible authorization approach in dire or emergency circumstances. However, this appropriate response can only be found by stepping back once again from the section and looking to s.188.  This section contemplates a “stop-gap” authorization, which is issued in urgent situations where an interception is required before there is an opportunity to apply for an authorization under s.185. This “follow-up” authorization must be sought for the s.184.4 situation as soon as is practicable to minimize the time in which a non-authorized interception is at play, thereby maintaining the rigours of the interception exception.

But wait, did the SCC not find s.184.4 invalid and contrary to the Charter? Yes, but in a very limited way, which protects the integrity of the section and signals to the legal community that crime fighting is back on the Agenda with the Charter’s full approval. The constitutional concern with the section is not the lack of judicial approval for an interception, as that judicial-less state would last only for a short time, but it is the lack of notice, which comes after the interception is used, to the intended targets that causes constitutional concern. No notice to those involved means a lack of oversight of the use of police powers. No notice means a lack of disclosure, which in turn means no ability to take the matter before a Judge to determine the appropriateness of the extreme police actions. It is this failure, which the Harper Government has twelve months to rectify. This is an easy fix with the SCC giving explicit instructions on how to comply.

This telling decision, written by new appointments, gives us some insight into the future. The Charter has recently celebrated its 30^th anniversary without much fanfare. This similarly low-key decision reiterates the now familiar Charter values of privacy and oversight but at the same time reinforces the State’s interest to combat crime. The Tse decision appears to provide an interpretation that presumes constitutionality instead of requiring proof of it. It seems to prefer self-referential statutory interpretation as opposed to the trail-blazing early Charter years when Chief Justice Dickson and Madame Justice Wilson wrote sometimes blistering commentaries on the role of the State in protecting Charter rights. Whether or not this is a trend will be seen in the next SCC Charter decision.

How A Charge Is Laid Under The Canada Elections Act

With all the recent news of election fraud and automated phone calls or robocalls directing voters to the wrong polling station in the last federal election, it is worthwhile to take a walk through the Canada Elections Act and particularly look at the Act’s mechanism for enforcement. In this blog posting, I will explain how a charge is laid under the Canada Elections Act.

According to the Elections Canada website, the Commissioner of Canada Elections, as appointed under the Act by the Chief Electoral Officer of Canada, is an independent, non-partisan, officer whose duty is to ensure that the Canada Elections Act is complied with and enforced.

Who is the Commissioner? Well, presently, Canada Elections is seeking a new Commissioner and the deadline is tomorrow, March 2, 2012. The current Commissioner is William Corbett, who was appointed in 2006.

How is a possible violation investigated? Under s. 510, the Chief Electoral Officer, presently Marc Mayrand, may refer to the Commissioner for an inquiry a violation committed by an election officer or any person who may have committed an offence under sections:

1. 486(3)(a) - signing nomination papers where ineligible;
2. 486(3)(d) - publication of false statement of withdrawal of candidate;
3. 488 - unauthorized printing of ballots;
4. 489(3)(g) - being a deputy returning officer and placing identifying mark on ballot;
5. 493 - failure to appear before a returning officer and;
6. 499(1) - removal of posted election documents.

Additionally, according to s. 511 of the Act, the Commissioner, if he believes on reasonable grounds that an offence under the Act has been committed, may refer the matter to the Director of Public Prosecutions, now Brian Saunders, who will then decide if a prosecution is warranted. If a prosecution is warranted the Director then requests the Commissioner to lay an Information before a Justice of the Peace or a Provincial Court Judge.

An Information is the charging document initiating the prosecution. In order to lay an Information, the Informant, in this case the Commissioner, must swear under oath and in writing, his reasonable and probable grounds for believing an offence has been committed. The Commissioner must also indicate the place and time of the alleged offence.

Once the Justice receives the sworn statement from the Commissioner, the Justice must determine if the sworn statement actually discloses reasonable grounds for the commission of an offence. Although this is the first judicial determination made on an allegation, the Justice is not deciding upon guilt or innocence. The Justice is simply satisfying himself that there is a prima facie case based on the sworn statement. The Justice does not weigh the evidence at this point but takes the evidence contained in the sworn statement at face value, meaning the Justice assumes the truth and integrity of the information. If the information, as presented, fails to satisfy the Justice that there are reasonable grounds for the charge, then no process is issued (as in a summons to court or an arrest warrant) and the charge is not initiated. 

Therefore, in some circumstances, a charge under the Canada Elections Act cannot be laid until a myriad of steps have been fulfilled such as:

1. The Chief Electoral Officer reviews the alleged violation and if the Chief has reasonable grounds to believe there may be a violation, refers the matter to the Commissioner for inquiry;
2. The Commissioner then conducts the inquiry and if the Commissioner believes on reasonable grounds a violation may have been committed, he may refer the matter to the Director of Public Prosecutions;
3. The Director of Public Prosecutions reviews the violation and if prosecution is warranted, the matter is sent back to the Commissioner;
4. The Commissioner must attend before a Justice of the Peace to lay an Information, the JP, must receive the complaint from the Commissioner, but must only issue process or initiate charges, upon being satisfied there are indeed reasonable grounds for the offence before a charge can be laid under the Canada Elections Act.

In the end, it is much more difficult to lay a charge under the Canada Elections Act, than it is for a charge to be laid under the Criminal Code. Anyone can appear before a Justice and swear an Information that they believe on reasonable grounds that a crime has been committed under the Code. If a Justice is satisfied there are reasonable grounds, then process is issued and a charge is laid.

Considering the right to vote is constitutionally protected under s. 3 of the Charter of Rights and Freedoms, the layers of inquiry required involving three different officials, who all must have reasonable grounds to proceed, seems incongruous. This is particularly puzzling in light of the Supreme Court of Canada’s robust and expansive interpretation of the democratic right to vote as being more than merely the right to cast a ballot. Indeed, the right to vote includes a citizen’s right to play a meaningful role in the electoral process.

There is, therefore, a positive obligation on the government to provide appropriate arrangements for the effective exercise of the right to vote. The government, to fulfill this obligation, must create an electoral apparatus to permit the exercise of this right, including implementing the rules and procedures for ensuring fair elections by providing the protection against violations of that right. The importance of this right cannot be underestimated or taken for granted and should be protected as all rights guaranteed under our Charter are so protected. It remains to be seen if this present "scandal" will effect any changes in order to re-align the actual electoral process more appropriately with our cherished Charter values.

The Trial Judge Deserves Deference!

Oftentimes a Supreme Court of Canada decision can be, at first glance, unimportant, particularly when the decision is brief. This can happen when the Court readily agrees with the lower Court decision, either the majority or even the dissent, and does not feel the need to add to the already cogent written decision. Sometimes, these one-liners by the SCC, fly under the radar and are not recognized as impactful decisions.

Such was seemingly the case in a recent decision of the Supreme Court of Canada in R. v. T.L.M. released on February 14, 2012. The case, heard by a panel of seven justices as opposed to the full court complement of nine, was an appeal from the Supreme Court of Newfoundland and Labrador - Court of Appeal. In a pithy yet brief decision, Madame Justice Deschamps stated:

We agree with Hoegg J.A., dissenting at the Court of Appeal, that the trial judge committed no reviewable error. Therefore, the appeal is allowed.

This innocuous manner of overturning a lower Court decision belies the true nature of the case as revealed by a closer reading of the lower Court decision. Indeed, through the lower court decision, T.L.M. takes on a more complex meaning and sheds light on another decision of the SCC, the D.A.I. case, released only four days previously.

The D.A.I. case is of huge national importance pronouncing on the capacity of adults with mental disabilities to testify at trial under s.16 of the Canada Evidence Act. Section 16 outlines the procedure to be adopted when an adult witness’s mental capacity to testify is challenged at trial. If the witness does not understand the nature of an oath or a solemn affirmation and cannot communicate the evidence, the witness cannot then testify. If however, the challenged witness does not understand the nature of an oath but can communicate his evidence, he may testify upon promising to tell the truth in accordance with s. 16(3). In the D.A.I. case the trial judge upon entering into an inquiry as required by s.16 found the 23 year-old witness, who had a mental capacity of a three to six year old, could not testify as she did not understand the duty to speak the truth.

The majority of the SCC, speaking through Chief Justice McLachlin, found the trial judge erred in her application of s.16 by requiring the witness to understand the meaning of telling the truth before being permitted to testify. Section 16(3) merely required the witness to be able to communicate the evidence as a prerequisite to testifying. Once this was fulfilled, the witness could then testify upon promising to tell the truth. There was no need for the trial judge to determine whether or not the witness understood what such a promise entailed. Thus, Chief Justice McLachlin’s decision gave this second part of the s. 16(3) determination, the promise to tell the truth, a broad and generous interpretation consistent with the public policy of the “need to bring to justice those who sexually abuse people of limited mental capacity — a vulnerable group all too easily exploited.”

The connection between these two cases, T.L.M. and D.A.I., is found in the appellate principle of deference, referred to in both decisions, but more specifically, as referred to by Justice Binnie and Chief Justice McLachlin.

The main issue in the T.L.M. appeal, as discussed in the lower Court decision, related to the admission of similar fact evidence in a trial involving sexual offences against a child. The similar fact evidence was of another sexual offence against a child, which occurred at the time of the offences before the court. The main issue was credibility, with the accused, the child’s uncle, denying the offence. The similar fact evidence, which was admitted by the trial judge, was relied upon in disbelieving the accused and convicting him of all charges.

The majority of the Newfoundland appellate court found the trial judge erred in his application of the legal test for admissibility of similar fact evidence. To come to this decision, the majority relied upon the principles for admission as enunciated by Justice Binnie in the SCC decision of R. v. Handy. The dissent of Mr. Justice Hoegg disagreed with the majority and found the trial judge made no legal error in admitting the similar fact evidence. Justice Hoegg also relied on Binnie J.’s decision in Handy and made especial reference to Justice Binnie's comments on the “substantial deference” to be given to the trial judge’s decision on admission of similar fact evidence. It is Hoegg’s dissent, which the SCC accepts in allowing the appeal. neither Justice Binnie nor Chief Justice McLachlin sat on the appeal.

Chief Justice McLachlin, in D.I.A., also commented on the principle of deference: an appellate principle in which the court reviewing the trial judge’s reasons defers or accepts the trial judge’s decision based on the judge’s superior position having heard and observed the evidence as opposed to the appellate court, which only reads the evidence and arguments in written form. In Chief Justice McLachlin’s opinion, the trial judge’s error was fundamental and therefore no deference should be given to her decision.

Justice Binnie in dissent, and no stranger to the issue of deference as pointed out in the Handy case, disagreed and stated the following:

The majority judgment in the present case repudiates the earlier jurisprudence and the balanced approach it achieved.  It entirely eliminates any inquiry into whether the potential witness has any “conception of any moral obligation to say what is ‘right’”. 

In the result, despite all the talk in our cases of the need to “defer” to trial judges on their assessment of mental capacity, a deference which, in my opinion, is manifestly appropriate, the majority judgment shows no deference to the views of the trial judge whatsoever and orders a new trial.  I am unable to agree.  I therefore dissent.

Justice Binnie’s very strongly worded dissent takes issue with the lack of conviction the majority has with the principle of deference: in other words, the Chief Justice and the other Justices concurring in her decision, do not “walk the walk” when it comes to deference. These incongruous comments on deference by the majority become even more incomprehensible in light of the oft-quoted Marquard case, involving testimonial capacity, in which Chief Justice McLachlin stated:

It has repeatedly been held that a large measure of deference is to be accorded to the trial judge's assessment of a child's capacity to testify.  Meticulous second‑guessing on appeal is to be eschewed.  As Dickson J. (as he then was) put it (at p. 135) in the oft‑cited case of R. v. Bannerman (1966), 48 C.R. 110 (Man. C.A.), aff'd [1966] S.C.R. v, a trial judge's discretion in determining that a child is competent to testify "unless manifestly abused, should not be interfered with."

Justice Binnie relied on McLachlin C.J.’s Marquard decision in his dissent in D.A.I.

In the end, the deference issue may come down to this: appellate courts will give deference more readily when the trial judge admits evidence than when the trial judge finds evidence inadmissible. It appears at least in matters of admissibility the SCC prefers to give deference to the principle of admissibility over exclusion. Although this approach may recognize more readily the public’s desire to have a matter tried, it may do so at the cost of a fair trial.

Can Criminal Law Keep Up With The Digital World?

A mere ten years ago, we did not “google” or “friend” or “wiki.” Twenty years ago, we did not listen to music on an iPod or talk on a Blackberry. Back then we bought Kodak film and waited to view our photos. The next decade should prove to be even more progressive as we start to use “bio interfaces” to directly connect to the Internet, thereby cutting out the “middle-man” or, to be more accurate, the “middle-machine.” With the direct ability to connect with technology, we will also see more data interfaces with which to interpret data, such as Wolfram Alpha. The advances and changes in technology have indeed been incredible.

With these new technologies, there will be challenges. Not in terms of how well we will adapt to the new advances: history has shown humans to be great adapters to new environments. Our challenge will be how well our institutions will be able to adapt and respond to the rapid changes. It is this challenge of how the criminal law responds to the new digital age, which was the subject of the panel presentation at the recent Alberta Law Conference.

To discuss this pressing issue, the panel consisted of two prosecutors with an expertise in presenting digital evidence in criminal cases: Daniel Scanlan, a B.C. Crown Attorney and author of Digital Evidence In Criminal Law and Marc Cigana, presently prosecuting the Quebec Hell’s Angels case. The discussion was first framed in the privacy context through the realities of society’s paradigm shift away from a full and robust privacy protection network, where personal information is jealously guarded and access to it is restricted, to a society of informed by social media, where intimate details are publically revealed and dynamically transferred world wide in seconds.

It is this new paradigm, which has kept the courts, the lawmakers, and the advocates behind the “eight-ball” and has created a legal disconnect. Decisions are rendered on technology, which by the time of the decision is no longer in use, thereby making the decision useless. Similarly, any legislative response is outdated by the time of the enactment date. The result is a patchwork of case law, too specific to be of much use as a precedent and lacking the informational basis to become legal principle.

The solution was a call by the panel for a more principled approach to technology. Instead of approaching digital evidence on a case-by-case basis, the participants in the criminal justice system must look beyond the facts and provide the evidentiary basis needed for a meta-decision on the use of digital technology. Such a decision or principle would produce a more measured response by our criminal justice system to new technological advances, thus promoting just results congruent with our digital age.

As it stands, the Courts struggle to conceptualize the new technology’s place in the legal literature. A neat example is the determination of the validity of a warrantless search of a cell phone based on the presence or absence of a reasonable expectation of privacy. Instead of viewing cell phones, as cell phones, and thus as a new entity requiring a unique reasonable expectation of privacy determination, the Courts struggle to pigeonhole cell phones into known categories. Thus the Court asks: Is a cell phone like a notebook? Or is a cell phone like a purse? Or is a cell phone like a computer? Unsurprisingly, the answer differs from case-case and from province to Province, leaving the case law in flux.

What is the Supreme Court of Canada’s position in this conundrum? So far, they have not made any cohesive determination on the issue but there is hope they will enter the fray with the Telus case, which recently received leave to appeal to the Supreme Court of Canada pursuant to s.40 as an issue of national importance, without being heard at the Court of Appeal level. In Telus, the police used a general warrant under s.487 of the Criminal Code to seize Telus records of text messages from the accused’s cell phone. The difficulty was the warrant gave authority not only for the seizure of historical messages, already sent, but also for the seizure of messages as they were being generated. Telus took the position such a seizure was akin to an interception of electronic communication under Part VI of the Criminal Code, which required a wiretap authorization.

Unfortunately, the framing of the case appears to be inviting the pigeonhole approach: Are the text messages merely letters in transit or are they more like a private conversation over the telephone? Instead of focusing on the characterization, the Court should be focusing on crafting a judgment, which will set down the general legal principles to be followed when faced with digital technology in the criminal law.

How they will in fact approach the issue will determine whether the digital future can easily live within our traditional precepts or whether our criminal justice system is just too outdated to face the challenges of tomorrow.    

The Goudge Report And Expert Evidence

I had the pleasure of attending a top-notch legal seminar at the Alberta Law Conference organized by the Canadian Bar Association on Evidence and Advocacy. Madam Justice SheilahMartin moderated the main panel discussion, presented as a joint session for all practitioners in family, criminal, and civil law including members of the judiciary, with Mr. Justice Goudge of the Ontario Court of Appeal and Toronto criminal lawyer, Mark Sandler as keynote speakers. The presentation was excellent and was about excellence as the title of the panel suggested: Recommitting to Excellent Expert Evidence.

The basis of the discussion was the 2008 Goudge Report on the Inquiry Into Pediatric Forensic Pathology in Ontario and the recommendations contained therein for the just and appropriate use of expert evidence in the criminal justice system. The Inquiry was struck after systemic frailties surfaced in pediatric forensic pathology in Ontario, which was marked by the flawed and inadequate methodology used by the primary pathologist in the field: Dr. Charles Smith. These flaws were exacerbated by a system, which unquestionably supported and approved of Dr. Smith’s role as an expert. The result was devastating as loving parents and devoted caregivers were wrongly convicted of killing the children they loved.

In one such case, called Amber’s Case after the child who died, the young neighbourhood babysitter was accused of shaking Amber to death. The teen insisted the child fell down a set of stairs but Dr. Smith, in his “expert” opinion, adamantly maintained the teen’s scenario was impossible. The teenager was ultimately acquitted after the Trial Judge found serious flaws in the expert evidence. Flaws, which remained uncorrected in future cases. Amazingly, the exonerated teen went on to become a Crown Attorney. This is a perfect example of the human ability to triumphantly overcome even the greatest adversity.

There were a number of factors contributing to these “unassailable” convictions. For one, Dr. Smith considered himself a Crown witness who was committed to the ultimate goal of conviction. Oftentimes, he was permitted to give evidence in areas outside of his knowledge and expertise. Much of his opinion was not based on scientific evidence but was merely anecdotal. Furthermore, his reputation was so fixed that even defence lawyers were reticent to challenge his position.

All of these factors came together in a system, which favoured the admissibility of forensic evidence from accepted experts without inquiring into the actual foundation of the opinion. There was no question of how Smith came to his opinion. There was no inquiry into the absence of quality control or peer review of his conclusions. Reliability and accuracy were presumed once the Crown established his expertise. Such expertise was easily established based upon Smith’s position as Director of the Ontario Pediatric Forensic Pathology Unit at the prestigious Hospital For Sick Kids in Toronto. The admissibility of his evidence was guaranteed based upon the innumerable times he was accepted as an expert at trial. As a result, conviction was also virtually guaranteed.

There are many lessons to be learned both systemically, in terms of the role of the criminal justice system, and individually, in terms of the specific functions of the participants in that system. Justice Goudge counseled increased vigilance from all participants: be it the “gatekeepers” function of the Trial Judge or the vital role of defence counsel in understanding and applying the evidentiary rules. Cases such as the Supreme Court of Canada decision in Mohan and the Ontario Court of Appeal (leave to SCC refused) in Abbey, which set out the test to be applied in accepting expert evidence, must be required reading when dealing with any kind of expert evidence. There must be no fear in dealing with experts and no broad based acceptance of their expertise when a life is in jeopardy. Where an expert’s evidence is concerned, only evidence-based opinion should be admitted if an accused is truly to be tried in accordance with our fundamental values of fairness, impartiality, and justice.

Sadly, even with the knowledge of the past, the system is still open to failure. Yesterday, the Texas Court of Criminal Appeals set aside a murder conviction, which was based on faulty forensic opinion evidence. The frailties of the evidence had been uncovered by investigative reporting. The accused had been serving a 60-year prison sentence.

Hopefully, the implementation of the safeguards as outlined in this posting, and in the other recommendations found in the Goudge Report, will prevent any recurrence of these injustices and will provide, instead, a mechanism for a fair trial.